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In re Strauss

Supreme Judicial Court of Massachusetts, Suffolk

April 12, 2018

IN THE MATTER OF ARIEL J. STRAUSS.

          Heard: January 24, 2018.

         Information filed in the Supreme Judicial Court for the county of Suffolk on January 20, 2016. The case was heard by Duffly, J.

          Terrence D. Pricher, Assistant Bar Counsel.

          Jeffrey D. WooIf for Board of Bar Overseers.

          Thomas F. Maffei for the respondent.

          Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.

          LOWY, J.

         We consider in this case the information filed by the Board of Bar Overseers (board) that an attorney intentionally misused a client's funds with temporary deprivation resulting, and its recommendation as to the appropriate level of discipline to be imposed. A single justice of this court suspended Ariel J. Strauss (respondent) from the practice of law for six months, and the board and bar counsel appealed.[1] For the reasons that follow, we reverse the order of term suspension and, accepting the board's recommendation, order an indefinite suspension.[2]

         Background.

          On August 25, 2014, bar counsel filed a two-count petition for discipline against the respondent. Count one alleged that between June 1, 2012, and September 30, 2013, the respondent failed to properly maintain a check register for his client trust account, and failed to perform a reconciliation of the account periodically. The respondent did not dispute the underlying facts as to count one, and a hearing committee of the board (committee) agreed that the conduct violated Mass. R. Prof. C. 1.15 (f) (1) (B) and (E), as appearing in 440 Mass. 1338 (2004).

         The second count involved the respondent's conduct in connection with the settlement of a client's personal injury claim. The committee found that the respondent (1) failed to safeguard the client's funds in a trust account, in violation of Mass. R. Prof. C. 1.15 (b) (1), as appearing in 440 Mass. 1338 (2004); (2) failed to pay the client the proceeds of her settlement promptly, in violation of Mass. R. Prof. C. 1.15 (c), as appearing in 440 Mass. 1338 (2004); (3) failed to provide the client with notice of withdrawal of his fee, the amount of the fee, an itemized bill for services rendered, and a balance of the client's funds left in the account, in violation of Mass. R. Prof. C. 1.15 (d), as appearing in 440 Mass. 1338 (2004); (4) authorized distributions that caused a negative balance in his client trust account, in violation of Mass. R. Prof. C. 1.15 (f) (1) (C), as appearing in 440 Mass. 1338 (2004); and (5) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Mass. R. Prof. C. 8.4 (c) and (h), 426 Mass. 1429 (1998).

         The committee determined that the respondent's misconduct included a "[k]nowing misuse of one client's funds for the benefit of another, " and recommended the respondent be indefinitely suspended from the practice of law. The board adopted the committee's findings and recommendation, and an information and record of proceedings was filed in the county court. After a hearing, the single justice issued an order imposing a six-month suspension.

         Discussion.

         There is no dispute that the respondent violated multiple rules of professional conduct relating to the appropriate use and maintenance of client trust accounts. The disciplinary proceedings therefore focused on the allegation that was in dispute and carried the most substantial sanction: whether the respondent intentionally misused client funds, with temporary deprivation resulting. Our review of the factual findings concerning this allegation is limited. We uphold the subsidiary facts found by the committee and adopted by the board "if supported by substantial evidence, upon consideration of the record, or such portions as may be cited by the parties." S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009). "While we review the entire record and consider whatever detracts from the weight of the board's conclusion, as long as there is substantial evidence, we do not disturb the board's finding, even if we would have come to a different conclusion if considering the matter do novo." Matter of Segal, 430 Mass. 359, 364 (1999). See id., quoting G. L. c. 3OA, ยง 1 ("'Substantial evidence' means such evidence as a reasonable mind ...


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